Blenderlaw

The English Court of Appeal, in a unanimous decision in Plan B Earth v Secretary of State for Transport [2020] EWCA Civ 214 (27 February 2020), has found that the process for designation of the Airports National Policy Statement: new runway capacity and infrastructure at airports in the South East of England, by the Secretary of State for Transport under section 5 of the Planning Act 2008 did not comply with the requirements of the Act. As part of the approval process for a national policy statement the Planning Act requires reasons to be given including “an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change.” Signing on to the Paris Agreement was government policy.

The Court goes to great lengths to explain that it isn’t expressing views about the substance of the decision, not entering into politics but maintaining the rule of law. For example, here is the last paragraph of the judgment:

Our decision should be properly understood. We have not decided, and could not decide, that there will be no third runway at Heathrow. We have not found that a national policy statement supporting this project is necessarily incompatible with the United Kingdom’s commitment to reducing carbon emissions and mitigating climate change under the Paris Agreement, or with any other policy the Government may adopt or international obligation it may undertake. That is not the outcome here. However, the consequence of our decision is that the Government will now have the opportunity to reconsider the ANPS in accordance with the clear statutory requirements that Parliament has imposed.

The current Government has been bothered by the idea that courts in the UK have interfered in political decisions and so it isn’t surprising to see these judges feeling the need to emphasize that what they are doing is normal rule of law stuff and not interfering in politics. But it is yet another reminder that we can’t take the rule of law for granted.